Defending state's authority on gay marriage is attorney general's role

By Greg Zoeller
for The News-Sentinel

Thursday, March 28, 2013 - 12:01 am

The law of the land recognizes the authority of states to license marriage.

The majority of states, including Indiana, provide a marriage license only to a man and woman, while nine states also allow same-sex couples to receive a license to marry.

Congress passed the Defense of Marriage Act, or DOMA, in 1996 that defines marriage as the legal union of one man and one woman for purposes of federal benefits. Under DOMA, states with the traditional definition of marriage need not recognize same-sex marriages from other states.

The two cases before the United States Supreme Court challenge both Congress’ traditional definition of marriage in DOMA and California’s traditional definition in its Proposition 8. The central question before the court in each case is: Does the government commit irrational discrimination by adhering to the traditional definition of marriage that has always (until very recently) prevailed in society?

The arguments presented to the court reflect a wide range of viewpoints within the legal community and our society as a whole. Indiana, represented by my office and joined by many other states, filed “friend of the court” briefs in the DOMA and Proposition 8 cases defending our state’s authority and the constitutionality of our current laws.

There are many who vehemently disagree with this position. I appreciate that there are strongly held views on both sides of this societal debate and understand that opinion polls have shown a dramatic change in public attitude in recent years toward same-sex marriage. But my duty as Indiana attorney general is to represent our state and to uphold and defend our state statutes when challenged, not to represent my personal views or what polls might suggest is popular opinion.

The obligation of attorneys general to defend existing statutes has been brought into question in these two Supreme Court cases, in that the U.S. attorney general and the California state attorney general are not defending their own federal and state laws that are being directly challenged.

To make things more confusing to the public, the president, who has stated that his personal views have evolved over the past few years, has decided to have the Justice Department’s U.S. solicitor general argue against upholding DOMA at the Supreme Court. He has expressed through his Justice Department’s legal filings his own opinion that DOMA is unconstitutional.

I view my duty differently. As Indiana attorney general, I don’t get to define marriage or vote on legislation. Instead, as state government’s lawyer I am obligated to defend our state’s laws passed by the people’s elected representatives in the Indiana Legislature. Our state’s legislative branch has the policy-making authority to license marriage within our state’s borders using the traditional marriage definition, and I will continue to defend their legal authority in court as necessary.

Rather than presuming to decide the constitutionality of our laws by leaving them undefended, I will uphold my responsibility to defend them and instead let the judicial branch decide if they are constitutional, as is its role.